Pharmacy Asks Texas to Return Drugs Intended for Use in Execution

Last month, officials with the Texas Department of Criminal Justice (TDCJ) announced that although their current supply of pentobarbital had expired, they had no plans to change the lethal injection protocol. At the time, officials did not disclose the source of the drugs they now are using in executions in Texas.

It now has come to light that TDCJ obtained pentobarbital from a local compounding pharmacy, which has demanded its return. Please see below for a press release issued today by the attorneys for three inmates who are suing for more information and who seek to halt the October 9 scheduled execution of Michael Yowell in order to permit time for review of Texas’ last-minute change to the use of compounded drugs.

Pharmacy Asks Texas to Return Drugs Intended for Use in Wednesday Execution

Civil Rights Plaintiffs Appealing Judge’s Order; Assert that TDCJ’s Promise that the purchase of execution drugs would be kept on the “down low” is additional evidence of TDCJ’s continued effort to carry out executions without transparency or accountability

(Austin, TX, Monday, October 7, 2013) A Texas compounding pharmacy that recently sold compounded pentobarbital to the Texas Department of Criminal Justice (TDCJ) for use in executions is demanding that the state return the drugs scheduled to be used in an execution on Wednesday. An appeal with the Fifth Circuit will be filed this week asking the court to stay Michael Yowell’s execution to permit time for review of Texas’ last-minute change to the use of compounded drugs. This weekend, a letter from Woodlands Compounding Pharmacy to the Texas Department of Criminal Justice came to light in lethal injection in federal court in Arizona. The letter states in part:

“Based on the phone calls I had with Erica Minor of TDCJ regarding its request for these drugs, including statements that she made to me, it was my belief that this information would be kept on the ‘down low’ and that it was unlikely that it would be discovered that my pharmacy provided these drugs. Based on Ms. Minor’s requests, I took steps to ensure it would be private. However, the State of Texas misrepresented this fact because my name and the name of my pharmacy are posted all over the internet.”

The letter concludes: “I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund.”

The letter was sent in the midst of a civil rights lawsuit filed by Texas prisoners seeking information about the drugs TDCJ intends to use to carry out executions. The letter was only discovered when it was filed in a lethal injection action in Arizona District Court sometime on Friday. The attorneys for the inmates and for TDCJ were in Court Friday afternoon on a hearing on a request for a stay of Mr. Yowell’s scheduled execution in light of Texas’ efforts to keep information about how it intends to proceed with executions secret, and the risks inherent to compounded drugs – risks that have recently been the subject of Congressional hearings in the wake of the fungal meningitis outbreak.

Public records requests show that TDCJ has stockpiled a variety of drugs, none of which ever has been used in an execution. It was not until last Thursday that media discovered TDCJ plans to carry out upcoming executions using compounded pentobarbital purchased from Woodlands Compounding Pharmacy, located in Houston.

Maurie Levin, one of the plaintiffs’s attorneys, said, “The letter from Woodlands Pharmacy is further evidence of TDCJ’s lack of good faith, reflected both in the way they’ve gone about attempts to purchase lethal injection drugs, and in their misleading responses to requests for information about how they intend to carry out executions. Both have thwarted true access to the courts.”

Bobbie Stratton, one of the attorneys for the Plaintiffs at the Houston office of Baker Donelson said, “At the heart of this lawsuit is the basic premise that governmental agencies owe us, the public, a duty of transparency, deliberation, and accountability – especially when they are carrying out the ultimate act – the taking of a human life.”

Background

The lawsuit at issue was filed last week by three death-sentenced prisoners in Texas. It is a civil rights lawsuit against the Texas Department of Criminal Justice (TDCJ), asserting that TDCJ has failed to disclose, in a timely and meaningful fashion, the drugs they will use to carry out executions and that this failure violates death row inmates’ constitutional rights. The suit also alleges that known problems with compounded drugs amount to a substantial risk that inmates will suffer severe pain, or that that drug will be inadequate to accomplish an execution.

Documents revealed at the Friday hearing in federal district court Judge Hughes’ courtroom reflect that TDCJ (or Woodlands Pharmacy) asked Eagle Analytical Labs to test the compounded pentobarbital for purity. Just three months ago an FDA inspection report listed numerous problems with the Lab, including problems with sterility, contamination, validation, test protocol, and staff training. One note indicates that staff performing a certain test (bacterialendotoxin) were never training in the “principles and methodologies of the test.”

Eagle Analytical is a subsidiary of PCCA, or Professional Compounding Centers of America. PCCA supplies ingredients to compounding pharmacies, including Woodlands.

Late Saturday afternoon, Judge Hughes denied Mr. Yowell’s request for a temporary restraining order, thus allowing the execution, scheduled for Wednesday, October 9, to proceed without meaningful review of the new drugs. The Plaintiffs are appealing that order to the Fifth Circuit Court of Appeals.

Executions in 2016

Stays Granted
March 30th: John Battaglia
May 27th: Charles Flores
June 17th: Robert Roberson
July 6th: Perry Williams
August 11th: Robert Pruett
August 19th: Jeff Wood
August 26th: Rolando Ruiz
September 2nd: Robert Jennings
December 2nd: John Battaglia